H1B Layoff: Strategy When Changing H1B Employer18 Sep 2012
The ongoing economic problems in the United States create a precarious existence for H1B workers, whose status is tied to employment. This explanation of one of the strategies available to H1B workers when seeking to transition to new H1B employment following a layoff and expands upon some of the answers to FAQs provided in our MurthyDotCom NewsBrief, H1B Workers and Layoffs (27.Aug.2012).
Background: No Grace Period After Layoff
Despite common misunderstandings to the contrary, there is no grace period given to H1B workers following a layoff. When one is laid off from H1B employment, the H1B status ends with the last day of the job. This is particularly problematic when layoffs occur with little or no advance notice.
H1B Employee Must be in Valid Status to Request EOS or COS
Adding to the problems faced by laid off H1B workers is the general requirement that one must be in valid nonimmigrant status in order to be eligible to request and obtain approval of a nonimmigrant change of status (COS) or extension of status (EOS). In order to meet the all the legal requirements, any request to change or extend nonimmigrant status must be filed on or before the final day of the H1B employment. As explained below, however, there are times that the U.S. Citizenship and Immigration Services (USCIS) can choose to exercise favorable discretion and forgive minor status gaps created by unexpected job loss. We at the Murthy Law Firm have found that there are ways to present this request that enhance our clients’ chances of success.
Procedure to Request Extension of H1B Status
An H1B worker who has been laid off and is seeking to change jobs needs the new employer to file an I-129 form with the USCIS. This form contains questions regarding the beneficiary’s current nonimmigrant status. While many try to file these forms after the H1B status has ended, in the hope that the USCIS will not notice, there are serious problems with this strategy. Among these problems is the fact that USCIS forms are all filed under penalty of perjury.
Strategy: Request USCIS to Use Favorable Discretion
We at the Murthy Law Firm have found that if the petitioner is upfront about the situation and discloses the facts in the initial filing of the H1B petition, the USCIS is often more favorably inclined toward exercising discretion in favor of the beneficiary. If favorable discretion is exercised, the USCIS can approve the new employer’s H1B petition with an I-94 attached to the approval notice, granting an extension of H1B status. Absent this favorable discretion, no I-94 card would be issued with the approval notice to an H1B worker who has been laid off and is out of status at the time the new employer files the H1B petition.
USCIS Regulation Permits Late Filing in Some Circumstances
The USCIS’s favorable discretion is based upon a regulation allowing for the acceptance of late filings in limited circumstances. The USCIS has instructed adjudicators to exercise such discretion when there is an immediate layoff and an H1B holder was afforded little to no time to file a new application or petition while still working and maintaining status.
Factors to Consider for Late Filing
While the USCIS has not provided specific requirements to benefit from this favorable discretion, there are important factors to be considered. To begin with, the amount of notification prior to a layoff is important, as well as how long it took to locate another bona fide offer of H1B employment. The applicant must be able to show that absolute best efforts have been made to comply with the law. This strategy is appropriate for relatively short periods of time.
If appropriate, other favorable or humanitarian factors may be presented for the USCIS adjudicating officer’s consideration. Typically, these are personal situations that would make it overly burdensome for the H1B employee to immediately depart the United States.
USCIS Authority to Approve the H1B Petition but Deny COS
While we have found that the USCIS is willing, in some cases, to favorably exercise discretion when there has been a short notice layoff, this does not change the fact that there is no status grace period granted to laid off H1B workers. Simply filing the new H1B petition through a new employer once status has been lost does not restore status or automatically allow one to remain in the United States. It therefore is vital to obtain qualified legal advice and representation in these cases, so that risks can be considered fully. Whether or not status will be restored depends entirely upon whether the new employer’s petition is approved, and whether the USCIS chooses to exercise discretion to grant continued status.
Premium Processing Program Often Safer Filing Method
There is no confirmation of H1B status and work authorization unless and until the petition has actually been approved and a new I-94 card issued. It is generally best to file the new employer’s H1B petition using the premium processing service to reduce the time required for adjudication.
While we at the Murthy Law Firm have met with success in many cases using the strategy discussed in this article, we emphasize that the final decision lies within USCIS discretion. Favorable discretion is only appropriate when a foreign national can demonstrate that attempts were made to comply with all laws and regulations. This means acting promptly and not lingering in the United States without proper immigration status.
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